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How Alexander Hamilton foresaw
the likes of Donald Trump: David Cole

Posted
Wednesday, January 24, 2018 10:19 am

David Cole

Legal scholars and progressives have long expressed doubt about the utility of courts in advancing social justice. They argue that judges are inherently conservative, that victories often prompt costly backlashes, and that focusing on courts diverts attention from the more important work that needs to be done in the political arena.

The first year of the Trump administration suggests that this skepticism is overstated. Much to the president’s dismay, those he calls “so-called judges” have repeatedly ruled against his administration. Judges appointed by Republicans and Democrats alike have enforced constitutional guarantees against a president who has shown little regard for the Constitution.

In this respect, the courts have performed just as Alexander Hamilton hoped they would. In the Federalist Papers, Hamilton argued that a judiciary with life tenure and the power to declare the political branches’ actions unconstitutional was essential, so that judges could serve as “the bulwarks of a limited Constitution.” Rarely has that role been more essential.

Consider the results.

Multiple courts have invalidated all three versions of the president’s travel ban, enacted to make good on his campaign promise to prohibit Muslims from entering the country. He abandoned the first two versions of the ban after courts ruled them illegal. The third version, also declared invalid by the courts, is now headed to the Supreme Court.

Two federal courts have preliminarily struck down Mr. Trump’s prohibition on transgender people serving in the military, a policy he announced on Twitter.

Federal courts have twice ordered the Trump administration to stop obstructing access to abortion for teenagers in immigration custody. The head of the Office of Refugee Resettlement refused to allow four undocumented minors in federal custody to obtain abortions, even though they have a constitutionally protected right to do so.

In December, a federal court in San Francisco ordered the administration to allow “Dreamers,” the undocumented immigrants whose parents brought them here as children, to renew their applications for protection from deportation. On Jan. 13, the administration announced that it would follow the order and allow these individuals to renew their status pending a final resolution of the lawsuit.

Also in December, a federal court ordered the administration to give the ACLU access to an unnamed U.S. citizen the military has been detaining in an undisclosed location in Iraq without charges. The government chose not to seek an immediate appeal, and allowed the ACLU to consult with the detainee, who confirmed that he wanted legal help.

In Pennsylvania, a federal court has preliminarily stopped Mr. Trump’s rollback of an Obamacare requirement that employers cover the cost of contraception in the insurance plans they provide to their employees.

In California, a federal court barred the administration from denying federal funds to cities and counties that adopt “sanctuary” policies and decline to enforce federal immigration laws.

Earlier this month,Mr. Trump disbanded his controversial “voter integrity” commission, designed to support Republican voter suppression efforts. He explained that “rather than engage in endless legal battles at taxpayer expense, today I signed an executive order to dissolve the commission.” The commission had been sued not only by numerous civil rights groups, but even by one of its own members.

Not every constitutional challenge has been successful. A federal judge in New York recently dismissed a case charging Mr. Trump with violating the Constitution’s Emoluments Clause, which forbids the president from accepting any “emolument,” or payment, from a foreign or domestic state official. (The court did not rule on the merits, but merely concluded that the plaintiffs did not have sufficiently concrete injuries to raise the claim.) Two other Emoluments Clause lawsuits are pending. Other than this decision, the administration has been singularly unsuccessful defending its actions in court.

This long line of legal victories against the administration is a sign of how careless it has been when it comes to constitutional constraint — and of how critical judicial checks are. Donald Trump’s disregard for convention, including in constitutional matters, does not play well with courts, whose job is to maintain those very conventions.

The battle is by no means over. Most of these cases are ongoing. The Supreme Court has yet to rule on the merits of any of them. It remains to be seen whether it will be as forceful a “bulwark of a limited Constitution” as the lower courts have been. But one year into Trump’s tenure, the federal courts have been willing to do just what Hamilton hoped they would: Stand up to the president in defense of liberty.